Before the Georgia Supreme Court issued its apportionment decision in Zaldivar v. Prickett, 297 Ga. 589 (2015), the United States District Court for the Northern District of Georgia had certified the following question to the Supreme Court, and it has now answered:

Does OCGA § 51-12-33 (c) allow the jury to assess a percentage of fault to the non-party employer of a plaintiff who sues a product manufacturer and seller for negligence in failing to warn about a product danger, even though the non-party employer has immunity under OCGA § 34-9-11?

“Unless there is a compelling reason to treat nonparty employers with immunity under the Workers’ Compensation Act differently than nonparties with other defenses or immunities against liability, Zaldivar requires an affirmative answer to the certified question. We see no such compelling reason, and so, we adhere to Zaldivar and respond to the District Court in the affirmative.”

Walker v. Tensor Machinery, LTD, S15Q1222 (11/16/15).

It is not uncommon for an employee to be severely injured by a dangerous or defective machine, giving rise to a products liability action against the manufacturer of the machine. Unfortunately, in Georgia, that manufacturer may be able to reduce its liability by offering evidence that the employer was at fault, even though the employee cannot sue his or her employer for damages, as the employee’s remedy against the employer is limited to workers compensation benefits.

As with the Supreme Court’s opinion in Zaldivar, this most recent decision was not unexpected, but it is certainly disappointing.

Burdette was a cell tower technician. It was his first day back at work, and he was assigned to work on the top of a cell tower with the lead tower hand. Prior to the shift, the supervisor had instructed the crew to climb down the towers and not to use controlled descent, which is similar to rappelling, and sometimes used in the industry. The employer required its employees to be trained such descents. Burdette and the lead man worked together on the same cell tower all day, and when they were done, the lead man instructed Burdette to climb down the tower, but Burdette responded that he wanted to use controlled descent instead:

“I told him no, man, just climb down. Might as well just climb down … . [W]e don’t have a safety rope up here for you to grab. He told me he had done this so many times. I was like, dude, they’re going to be mad if you do it. [Our supervisor] will be mad if you do it and, … you might not have a job or you might, you know, have to deal with the consequences if you don’t listen.”

However, Burdette prepared hisequipment and began a controlled descent, but fell, causing severe injuries to his ankle, leg, and hip. Should he be barred from receiving workers compensation benefits?

The Georgia Court of Appeals determined he would not be barred, even though he had violated instructions from his lead man and the supervisor. In Burdette v. Chandler Telecom, LLC, 2015 Ga. App. LEXIS 619 (10/30/15), the Court found that the administrative law judge and the State Board of Workers’ Compensation had erred in finding that the claim was barred because the injury resulted from his own willful misconduct, and they reversed the Board’s decision.

“Our Supreme Court has . . . explained that willful misconduct “involves conduct of a quasi criminal nature, the intentional doing of something, either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences.” Indeed, the general rule is that “mere violations of instructions, orders, rules, ordinances, and statutes, and the doing of hazardous acts where the danger is obvious, do not, without more, as a matter of law, constitute [willful] misconduct.””

This is an important decision, given the trend in some states, including Tennessee, to find that mere violation of work safety instructions constitutes willful misconduct sufficient to relieve the employer of responsibility for the resulting medical bills and disability benefits. In Burdette the Court of Appeals followed Georgia precedent and reached the correct decision. Burdette was not drunk or high on drugs, and he did not deliberately try to injure himself. Allowing an employer to escape responsibility for workers compensation benefits in such a circumstance has repercussions far beyond the immediate parties involved. For instance, if the workers compensation insurer was not required to pay in such circumstances, the hospital would not get paid for the treatment it provided and the burden would ultimately fall on the public.

Yesterday, in Michelle Rye v. Women’s Care Center of Memphis, the Tennessee Supreme Court overruled Hannan v. Alltel Publishing Co., issued in 2008, and returned Tennessee to a summary judgment standard consistent with the Federal Rules of Civil Procedure. The Court reasoned that the Hannan decision “has functioned in practice to frustrate the purposes for which summary judgment was intended.” As a practical matter, it remains to be seen what the impact will be of yesterday’s ruling. The Legislature had already promulgated legislation in 2011 “with the stated purpose ‘to overrule . . . Hannan.'” The Rye decision could very well be a simple judicial affirmation of the legislation passed in 2011, and if so, the decision does not necessarily change the law. That being said, the Rye decision is a clear signal to the trial courts that Hannan is no longer the law.

As covered in our previous post, Tennessee’s Consumer Protection Act may provide a good remedy for owners of Volkswagen and Audi diesel automobiles purchased in Tennessee, as it provides for treble damages and attorneys fees.

Cars subject to the recall, which include the following, will have reduced resale and trade-in value, even after the defective emission control systems are corrected:

2009 – 2105 VW Jetta TDI;

2010 – 2015 VW Golf TDI;

2010 – 2015 Audi A3 TDI;

2012 – 2015 VW Passat TDI;

2012 – 2015 VW Beetle TDI.

If the car was purchased new in Georgia, the Uniform Deceptive Trade Practices Act, O.C.G.A. Sec. 10-1-370 could provide a good remedy as well. Private actions are permitted, and if an intentional violation is found, the court can award three times the actual damages under O.C.G.A. Sec. 10-1-399, as well as reasonable attorneys’ fees. This is very important, as the damages to each individual owner may be relatively modest, depending on the diminution in value of each car, but tripling the damage award and adding attorneys’ fees can make it economically feasible to bring individual lawsuits on behalf of diesel owners as an alternative to participating in one of the hundreds of class action lawsuits already filed around the county.

Chattanooga is home to Volkswagen’s only North American manufacturing plant. The recent revelations of manipulation of the emission control software on their diesel automobiles are shocking.

According to the EPA, many Volkswagen and Audi vehicles equipped with 4-cylinder diesel engines were programmed to detect when they were undergoing emissions tests. However, during normal operation the software deactivated some of the onboard pollution control equipment. This process apparently helped improve performance but resulted in the vehicles emitting up to 40 times the allowable levels of additional particulates and smog-causing oxides of nitrogen.

“Volkswagen has ordered an external investigation of this matter,” he said. German authorities are set to probe Volkswagen for similar emissions manipulation in Germany, according to Dow Jones.

Volkswagen must now work closely with U.S. authorities, the German Transport Ministry spokesperson told newswires, adding that they expect the company to deliver reliable information.

Meanwhile, Vice Chancellor and Economy Minister Sigmar Gabriel told Reuters he was concerned about the “excellent” reputation of German carmakers, saying Volkswagen’s emissions manipulation was a “bad incident,” according to Reuters. Gabriel also called on the company to fully clear up the egregious claims.

VW could face civil penalties of $37,500 for each vehicle not in compliance with federal clean air rules. Some 482,000 four-cylinder VW and Audi diesel cars sold since 2008 are involved in the allegations. The U.S. Environmental Protection Agency (EPA) said on Friday the software deceived regulators measuring toxic emissions, adding that Volkswagen could face fines of up to $18 billion as a result.”

Volkswagen Could Face Lawsuits by its Customers:

Is Volkswagen guilty of deliberately misleading its customers? Would they have bought diesel automobiles knowing they would be spewing out “40 times the allowable levels of additional particulates and smog-causing oxides of nitrogen”?

Although Volkswagen will have to recall all those cars, and fix the problem, the vehicles may not perform as well with the emissions controls working correctly. How will that affect the resale value of the vehicles?

Is Volkswagen guilty of “unfair or deceptive acts”?

The Tennessee Consumer Protection Act is found at T.C.A. § 47-18-101 et seq.

T.C.A. § 47-18-102 provides that:

“This part shall be liberally construed to promote the following policies, which includes:

(2) To protect consumers and legitimate business enterprises from those who engage in unfair or deceptive acts or practices in the conduct of any trade or commerce in part or wholly within this state.”

T.C.A. § 47-18-104 makes the following acts, among others, unlawful and in violation of the law:

(2) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services.

(5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have . .

(7) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another . . .

(21) Using statements or illustrations in any advertisement which create a false impression of the grade, quality, quantity, make, value, age, size, color, usability or origin of the goods or services offered, or which may otherwise misrepresent the goods or services in such a manner that later, on disclosure of the true facts, there is a likelihood that the buyer may be switched from the advertised goods or services to other goods or services;

Lawsuits can be brought against the offending company by persons harmed by such practices, T.C.A. § 47-18-109:

“(a) (1) Any person who suffers an ascertainable loss of money or property, real, personal, or mixed, or any other article, commodity, or thing of value wherever situated, as a result of the use or employment by another person of an unfair or deceptive act or practice described in § 47-18-104(b) and declared to be unlawful by this part, may bring an action individually to recover actual damages.”

Treble damages can be awarded under subsection (a)(3):

“If the court finds that the use or employment of the unfair or deceptive act or practice was a willful or knowing violation of this part, the court may award three (3) times the actual damages sustained and may provide such other relief as it considers necessary and proper, except that the court may not award exemplary or punitive damages for the same unfair or deceptive practice.”

The damages may be substantial, if the resale value of a Volkswagen or Audi vehicle is diminished, even after the recall repair work is performed.

Attorneys’ fees may be awarded under subsection (e)(1):

“Upon a finding by the court that a provision of this part has been violated, the court may award to the person bringing such action reasonable attorney’s fees and costs.”

Georgia’s modified comparative negligence system was radically altered by the tort reform legislation enacted in 2005. The legislation was rammed through the General Assembly so fast there was none of the usual vetting by the judiciary committees and the resulting laws, effective February 16, 2005, were poorly drafted and procedurally confusing. Until 2005, apportionment of damages was permitted in Georgia only in those cases against “more than one person” where “the plaintiff is himself to some degree responsible for the injury or damages,” O.C.G.A. § 51-12-33.

O.C.G.A. § 51-12-33 now provides:

“(a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.

(b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

(c) In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.

(d) (1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.

(2) The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty’s name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.

(e) Nothing in this Code section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly stated in this Code section.

(f) (1) Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties.

(2) Where fault is assessed against nonparties pursuant to this Code section, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.

(g) Notwithstanding the provisions of this Code section or any other provisions of law which might be construed to the contrary, the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.”

Recently, in Zaldiver v. Prickett, 2015 Ga. LEXIS 547 (7/6/15), the Georgia Supreme Court held that fault could be allocated to the plaintiff’s employer on a negligent entrustment theory. It was an odd case, as the defendant contended the plaintiff’s employer was negligent in entrusting the vehicle to the plaintiff. The Supreme Court held that negligent entrustment of an instrumentality can be a proximate cause of an injury to the person to whom the instrumentality was entrusted, and in the process created a new tort in Georgia, “first party negligent entrustment.”

Under O.C.G.A. § 51-12-33 fault can now be apportioned to entities the plaintiff cannot recover from, such as his or her employer, in spite of the clear language in subsection (b) that the trier of fact can “apportion its award of damages among the persons who are liable.” An employer simply cannot be held “liable” for damages sustained by its employee in Georgia under O.C.G.A. § 34-9-11. See dissent by Justice Benham. However, the majority found otherwise, but to reach that conclusion, they had to overrule Ridgeway v. Whisman, 210 Ga. App. 169 (1993), and hold that negligent entrustment of a vehicle or some other instrumentality to a minor or inexperienced person could result in liability if that person is injured by is use.

Most intriguing, however, are hints by Justice Blackwell that the statute might not apply in all tort cases. What did he mean by the comment “in the cases to which the statute applies” (f.n.3)? Does that mean that damages cannot be apportioned unless “an action is brought against more than one person for injury to person or property” and “the plaintiff is to some degree responsible for the injury or damages claimed”? In other words, if a lawsuit was brought against a single defendant allocation of fault to non-parties would not be permitted?

Tennessee’s one year statute of limitations for personal injury claims often forces plaintiffs to file suit before they even know the full extent of their injuries. On the other hand, there are probably many meritorious cases that cannot be filed because the statute of limitations expires before the injury victims even think about filing a lawsuit. Occasionally, plaintiffs cannot access critical evidence due a pending criminal investigation. The Tennessee legislature has finally granted some relief in the latter situation by extending the statute of limitations from one to two years if:

“(A) Criminal charges are brought against any person alleged to have caused or contributed to the injury; (B) The conduct, transaction, or occurrence that gives rise to the cause of action for civil damages is the subject of a criminal prosecution commenced within one (1) year by: (i) A law enforcement officer; (ii) A district attorney general; or (iii) A grand jury; and (C) The cause of action is brought by the person injured by the criminal conduct against the party prosecuted for such conduct.” T.C.A. § 28-3-104(a)(2).

So if criminal charges are brought against a defendant within one year after the wreck or other event causing injury, the one year SOL can be extended for another year, if all of the foregoing conditions are met. This amendment to T.C.A. § 28-3-104 was effective July 1, 2015. Unfortunately, not many lawyers will be willing to take the risk of waiting more than a year to file suit in a personal injury case where criminal charges are pending, so this provision will not be used often. However, situations can be envisioned where a meritorious claim might be saved by the operation of this new law.

The Georgia State Board of Workers Compensation has eliminated a requirement that the employer’s posted panel of physicians for work injuries include only “non-associated” physicians, effective July 1, 2015, by amending Rule 201(a)(1). This change does not help injured workers, further limiting choices, and giving the employer even more control. The practical implications are obvious. If the injured worker is not satisfied with the selected doctor from such a panel, what are his or her options? Too bad, you have to go see selected doctor’s partner or associate!

Another change to Rule 201 eliminates the conformed panel option, an option which was not being utilized. We have not seen an employer using such a panel in years.

Other rule changes effective July 1st include a strange amendment to Rule 102(A)(6) prohibiting parties and attorneys from recording conference calls with judges, without permission:

“No party shall make any audio, video, photographic, electronic recording or court transcription of a Board proceeding, including any conference call with an Administrative Law Judge, unless expressly permitted by the Board. Any such request must be submitted to the Board at least 24 hours prior to proceeding or conference call with notice to all parties. This Rule does not apply to an official function of a law enforcement agency, the State Bar of Georgia, or the Judicial Qualifications Commission.”

So what about a conference call scheduled with a judge on short notice? Should lawyers refuse to participate in such calls on less than 24 hours’ notice, or perhaps refuse to participate at all unless a court reporter is present?

The only amendment favorable to injured workers increases the base amount payable to the physician for a claimant’s independent medical examination to $1200. See Rule 202(b).

On June 25, 2015, a horrible crash on I-75 involving a tractor trailer killed six people, including two children. The tractor trailer plowed into nine vehicles that were stopped due to road construction. A more complete account of the tragic wreck, including the names of the victims, can be found in the Chattanooga Times Free Press:

It is almost universally agreed upon by highway safety advocates that requiring installation and use of forward collision avoidance and mitigation systems and speed governors on all tractor-trailers would reduce the number and severity of truck crashes on our highways and save lives. Here’s how:

Forward Collision Avoidance Systems: This technology, which works by alerting the driver and taking over the brakes and engine of the tractor-trailer when an imminent collision is anticipated, is already fully developed and comes as a standard feature on many new automobiles. It is estimated that it would cost less than $500 per vehicle to retrofit current tractor-trailers to meet this standard. On average, according to NHTSA, two to three rear-end collisions involving tractor-trailers occur somewhere in the U.S. about every hour.

Speed Governors: Every tractor-trailer manufactured since 1992 comes from the factory with a speed governor installed as standard equipment, which works by setting a predetermined speed limit that the vehicle cannot exceed. Unfortunately, many truck companies and individual truckers opt not to use them. However, the companies that require the use of speed governors in their trucks report that, in addition to being safer on the roads, their tractor-trailers also are more profitable due to fuel savings, last longer because of the reduced wear-and-tear, and have lower liability costs as a result of the reduction in the number and severity of crashes.

It is estimated by the U.S. Department of Transportation that there are nearly 100,000 injuries and 4,000 deaths nationwide each year as a result of tractor-trailer crashes. It is time to do something and reduce the carnage on our roadways.

Ms. Bowden was an uninsured patient treated at a hospital in Columbus following a car wreck. The hospital billed her $21,410 for emergency treatment for a broken leg, and subsequent physical therapy, and then filed a lien for that amount against anything she might recover in a lawsuit arising from the wreck under Georgia’s hospital lien statutes, O.C.G.A. §§ 44-14-470et seq. Unfortunately there was only $25,000 in available liability coverage, which was paid into court. In the ensuing dispute over the money, the patient argued that the hospital’s charges were excessive. The amount of the hospital’s lien is expressly limited by statute to “the reasonable charges for hospital . . . care and treatment of an injured person,” O.C.G.A. § 44-14-470(b). The patient sought discovery of pricing agreements between the hospital and insurers such as Blue Cross Blue Shield and concerning the hospital’s indigent care program. The Medical Center objected and she filed a motion to compel discovery, which the trial court granted subjectto the entry of a protective order to ensure confidentiality.

The Georgia Supreme Court, in Bowden v. The Medical Center, 2015 Ga. LEXIS 436 (6/15/15), held that in the dispute over the amount of the hospital lien the “subject matter involved in the pending action” indisputably included whether the amount claimed to be due by the hospital was reasonable, under the terms of the hospital lien statutes, O.C.G.A. §§ 44-14-471(a)(2), 44-14-470(b). Therefore the amounts the hospital charged to other patients for the same type of care were relevant and discoverable, under O.C.G.A. § 9-11-26(b)(1).

“The fair and reasonable value of goods and services is often determined by considering what similar buyers and sellers have paid and received for the same product in the same market, with adjustments upward or downward made to account for pertinent differences, and we see no reason why the same cannot be true of health care.”

And, the Court held that even if the patient had agreed to be responsible for the charges, the contract price for goods and services did not necessarily equal their reasonable value.